Texas Law Enforcement Memo: Beware Nonprofits Promoting Tolerance

On Feb. 19, 2009 a Texas based hub for national security data collection, the North Central Texas Fusion System, released a Prevention Awareness Bulletin that cites an increase in tolerance as a security concern, cites non-violent activities relating to Muslims and says "it is imperative for law enforcement officers to report these types of activities to identify potential underlying trends emerging in the North Central Texas region." It attracted national attention [1] and criticism from civil liberties organizations. [2]

The bulletin warns that "tolerance is growing in more formal areas", describing an "Islamic Finance 101" conference hosted by the Department of Treasury, cab drivers refusing to carry passengers with alcohol and the installation of footbaths at an Indianapolis area airport to "facilitate Muslim prayer" were all reasons to warrant an increase in surveillance. It states "it is imperative for law enforcement officers to report these types of activities to identify potential underlying trends." Caroline Fredrickson, Director of the ACLU Washington Legislative Office, said, "This memo is not a plea for legitimate intelligence, and seems to endorse discrimination against Muslims."

"The kind of indiscriminate and unlawful investigations this bulletin calls for always results in a chilling effect on free speech and association. The idea that the tolerance advocated by the groups being targeted would be treated as a menace to American security demonstrates a disregard for civil liberties and a disdain for democracy itself," added Fredrickson.

After the attacks in 2001, there was nearly universal support for drastically improving the sharing of information collected by law enforcement agencies at all levels. This gave birth to what are now commonly referred to as "Fusion Centers". These hubs of data collection, numbering almost 70 [3] across the country, were created to supersede individual agency domains by creating collaborative data networks for conducting investigations. The activities they generally monitor include criminal and terrorist threats, gang activity and drug trafficking. But as with other massive government initiatives involving databases and watchlists, the fusion centers' data about the organizations and people the law enforcement groups are tracking is ripe with abuse, mis-categorization or simply incorrect.

Criticism of the Fusion Centers and their policies has been widespread. A Congressional Research Service Report [4] from 2007 highlighted several concerns in the construct and operations of the fusion center system that remain unaddressed. Ranging from inadequate training procedures of fusion center personnel to the lack of a single legal authority governing the conduct of the centers, the report concluded that the Guidelines are ambiguous and fall short of being practical for application.

The ACLU and several other groups have reported [5]that fusion centers make the collection and storage of personal data too easy for the government and also vulnerable to abuse and errors. An example of government misuse of data collection was the 2005 and 2006 scandal surrounding the Maryland police officers undercover surveillance of war protestors and death penalty advocates. Information obtained through the illegal espionage found its way into the fusion center databases. There was no legal recourse for the targeted people wishing to remove the data.

In its response to the Texas bulletin, the ACLU reiterated the fundamental flaws cited in the CRS report , including lack of an authoritative body and the insufficient training of staff and standards employed by the fusion centers. This particular bulletin was distributed to thousands of people in over a hundred different agencies. Michael German, ACLU National Security Policy Counsel and former FBI agent said, "The Texas fusion center's bulletin shows and unhealthy disregard for constitutional rights and democratic processes."

Fusion centers will most likely continue to be relied upon by law enforcement agencies under the Obama administration. In the second week of March 2009, St. Louis hosted a National Fusion Center Conference [6]with former Arizona Governor Janet Napolitano in attendance. She had developed one of the first state anti-terrorism fusion centers and as now Secretary of Homeland Security she hopes to improve the sharing of intelligence between state and federal agencies. Napolitano, aware of privacy concerns, had created an agency to ensure safeguard measures of Arizona fusion centers. But skepticism remains. Peter Simonson, executive director of New Mexico's ACLU chapter, said, "I think the Obama administration has a much greater sensitivity to these issues than the previous administration, but the track record from Arizona would suggest that we still have good reason to be concerned.

Background of the Fusion Center

Inspired by the 2002 Department of Defense's project, Total Information Awareness [7], and the recommendations [8] of the Criminal Intelligence Summit held in March 2002, fusion centers were envisioned as a central location designed to import information from local, state and federal law enforcement agencies with the goal of effectively eliminating the "barriers in…laws and policies that limit intelligence sharing." By overcoming the "hierarchy" within the law enforcement and intelligence gathering agencies, fusion centers were viewed as a more efficient way to conduct successful investigations.

In Oct. 2003, the Department of Justice began the National Criminal Intelligence Sharing Plan [9] and began implementing it in 2004. The plan called for a fusion center type data sharing system, but would not be limited to just law enforcement groups, emergency management databases and the courts to gather materials. It would also include private entities, thus providing information often not available to many law enforcement agencies. A year later, the Fusion Center Guidelines [10]were created to outline their function and responsibilities.

From the Fusion Center Guidelines:

“The principal role of the fusion center is to compile, analyze, and disseminate criminal/terrorist information and intelligence and other information (including, but not limited to, threat, public safety, law enforcement, public health, social services, and public works) to support efforts to anticipate, identify, prevent, and/or monitor criminal/terrorist activity. This criminal information and intelligence should be both strategic (i.e., designed to provide general guidance of patterns and trends) and tactical (i.e., focused on a specific criminal event).”

These Guidelines allow for strategic information to be collected on individuals not under any criminal investigation. According to the appendices of the Fusion Center Guidelines, the following list of information may be collected and stored indefinitely: <!--[endif]-->